ACRAWSA e-journal, Vol. 2, No. 1, 2006
COUNTER TERRORISM POLICING – INVESTING IN THE RACIAL STATE
VICKI SENTAS
Abstract Introduction
This article explores a framework for how That counter terrorism policing is di- racial state power is regenerated in Aus- rected against Muslim and migrant tralia through contemporary counter communities is clear enough. However terrorism policing. Counter terrorism is there is more at play in this common ob- scripted as a struggle over history, the servation. Britain, the United States, future and the space of nation to pro- Canada and Australia for example, tect against multiple threatening ‘ene- have intensified the policing of racialised mies’. In particular the function of secu- bodies. The technologies of this state rity policing and the institution of the po- repression are expanded with pre- lice in constructing racial subjects are emptive criminal laws and immigration considered. regulations (for example, Cole 2003; Hagopian 2004; Fekete 2002). Commu- The counter terrorism policing framework nity and non-government organisations is suggestive of how the social relations (NGO’s) document communities under of race are practices of state terror siege, targeted by state agencies and which remake white nation. The particu- made fearful (Ansari 2005; Nguyen 2005; lar significance of police discretion as AMCRAN 2005a, 2005b; HREOC 2004). always producing social dislocation, Security capabilities emblematic and stigmatisation and criminalisation is con- constitutive of colonial forms of rule are sidered. The historical role of the police reprised by liberal democracies with the to racialise Indigenous and multi-ethnic fervour of war. communities is presented as a continu- ous, albeit heterogenous production of In thinking through the significance of state power through a logic of erasure this apparent reprisal of the state’s re- and denial. In this sense, counter terror- pressive capacities, law and policing ism is conceptualised as a key invest- appear central to understanding the ment in both white ontological security reproductive capabilities of white he- and a teleos of terror. gemony and racial power. Counter ter- rorism both constructs and enacts upon The dynamics of the containment of racial subjects. However, at a time when perceived threats to white interest has the state looms large, the ‘racial state’ is explanatory potential for how neoliberal absent conceptually. What is the rela- ‘democratic’ futures are regenerated. tion of the Australian colonial state to Rather than figuring law and police de- contemporary forms of racial rule? What cision making as a moment of excep- is counter terrorisms’ significance for the tionality, the violence of these relations nature of racialisation? represent what is fundamental to de- mocracy. Scholarship which examines Australian counter terrorism law and policing in de- tail predominantly figures the concep-
ISSN 1832-3898 © Australian Critical Race and Whiteness Studies Association 2006
SENTAS: COUNTER TERRORISM
tual terrain within the erosion of civil and also see, Osuri & Banjeree 2004). Polic- human rights. In particular the deleteri- ing privileges whiteness through prac- ous impact of the erosion of the rule of tices of terror and the foreclosure of non- law and liberal democracy features as a white futures. Erased histories of state key concern (Emerton 2004; Williams terror point to the origins of counter ter- 2003; Head 2002; O’Neil et al 2004; rorism policing in the foundational vio- Carne 2003; Hocking 2004; Tham 2004; lence of colonisation. Michaelson 2003). Important accounts examine the impacts of Australian Secondly, racial power can be under- counter terrorism laws and technologies stood as a historical process dependent on Muslim and ethnic communities. on a series of economic, cultural and These include the suppression of the fi- political investments. The circulation of nancing of terrorism and pre-emptive terror, through the institutions of ‘security criminal justice frameworks (McCulloch policing’, is a constitutive practice of the et al 2004; McCulloch & Carlton 2006), state. That is, state terror consolidates the relation of human rights to racial pro- the racial states’ re-formation. I demon- filing (Golder & Williams 2005) and bio- strate how counter terrorism policing metric technologies and every day life produces continuous terror, central to (Pugliese 2005). Furthermore, analysis of both the historical and contemporary the multiple discursive and constitutive racialisation of social control. processes of racialisation and the war on terror in Australia provides context for Thirdly, drawing on the ideas of Walter law (for example, Pugliese 2005; Benjamin and Giorgio Agamben, the Poynting et al 2004; Osuri and Banerjee practice of counter terrorism explains 2004; Perera 2002; Nasser-Eddine 2002). how the violence of white supremacy is The specific relation between counter integral to liberal democracy. An ex- terrorism, the institution of the police and amination of liberal democracy as the central role of the state in racial and founded on the violence of law compels social formation however, remains under a focus on how this violence is integral to theorised. It is with the conceptual con- the institution of the police. The final sec- cern of how the racial violence of white tion of this article then outlines how the supremacy is integral to liberal democ- contemporary legal framework is pro- racy, that this article begins. ductive of police discretion to produce sovereign terror. State terror, rather than This article explores a framework for how exceptional, is essential to the function racial power is regenerated in Australia of racial rule and democracy itself. This through counter terrorism policing. article concludes that practices of polic- Drawing on David Goldbergs’ theorisa- ing as state terror in Australia are dialec- tion of the ‘racial state’, counter terror- tically linked to the processes of white ism is presented as a state investment in nation building. the future of white supremacy. Firstly, I argue counter terrorism reconfigures the An Investment in Whiteness – The colonial project to control national Racial Security State space against heterogeneous collectiv- ities. Counter terrorism operates specifi- cally as a ‘white’ state terror. Following ‘White’, ‘white supremacy’ and ‘white- Suvendrini Pereras’ concept of ‘teleol- ness’ are contested terms with contin- ogy of nation’, counter terrorism policing gent meanings, and their use requires as state practice organises space and specification. The explanatory potential time along racialised lines (Perera 2000: of ‘whiteness’ arises in locating the mul- tiple, intersecting processes regenerative
2
SENTAS: COUNTER TERRORISM
of cultural political and economic he- Whiteness is simultaneously the organisa- gemony. The varied ways in which tion of territory and time, whereby visions whiteness dehistoricises how it is pro- of history and future mobilise the present duced, maintains the illusion of a univer- space of the nation. Perera situates sal and natural collective identity. and whiteness as both spatial and temporal operates as a strategy of power (Perera forms of organisation, ‘mapping national 2000). I am concerned here with the space both for past and future’ (2000: strategies of power which include and 10). White power is naturalised, Perera exclude non-white others through for- argues, through successive processes mations of nation-state, rather than and narratives of erasure - the denial of ‘white’ identities. Hage’s analysis of the Indigenous genocide and the violence ‘fantasy of white supremacy’ as the of colonial domination, the continuing governing impulse for a mastery over denial of Indigenous sovereignty and nation, describes how practices of ex- neoliberal practices which variously clusion are predicated on the control or value and construct migrants as either removal of undesirable Aboriginal or within or outside the space of nation non-white others, as transgressions or (2000: 7). intrusions into national space (1998: 47). Racial power in the context of national The functioning of state power in secur- management of categories of undesir- ing itself against racial others is itself ob- ability, is itself conceived within the terri- scured through the spatial and temporal torial space of nation in which such organisation of the nation. The way state categories make commonsense. For power is experienced and responded to Hage, white is a ‘dominant mode of self casts light on the nature of rule. Osuri perception’ expressed as ‘national will’, and Banjeree’s incisive analysis of na- an anxiety targeted at migration as un- tional discourses of security deploys Per- dermining the centrality of white peo- eras’ concept of teleology of nation to ple’s decision making (19, 38, 65). White argue whiteness is both discursive and supremacy then, is understood as a tri- embodied in ‘lived realities and visuali- umph over the organisation of space ties’ (Osuri & Banjeree: 152, 161). Theo- and non-white identities. Specifically, rists such as bell hooks highlight the ter- white supremacy is located as a hege- rorising psyche of whiteness in the black monic strategy of state power. imagination, where in the United States whiteness is associated ‘with the terrible, Situating whiteness in the spatial proc- the terrifying and the terrorist’, as a di- esses which remake nation, must neces- rect result of experiences of domination. sarily identify the historic, geopolitical hooks writes that: specificity of the production of racial subjects and domination (Perera 2005; To name the whiteness in the black Osuri & Banjeree 2004; Pugliese 2002). imagination is often a representation of Stuart Hall’s challenge to situate prac- terror. One must face written histories tices of racism as they arise out of the that erase and deny, that reinvent the past to make the present vision of racial existing organisation of society, is to look harmony and pluralism more plausible. ‘to the present unfolding of its eco- To beat the burden of memory, one must nomic, political and cultural processes, willingly journey to places long uninhab- not simply to its repressed past’ (quoted ited, searching the debris of history for in Gilroy 1990: 265). Yet this ‘present un- traces of the unforgettable, all knowl- folding’ signals precisely what is at stake edge of which has been suppressed.’ in identifying the nature of white power (hooks 1992: 172) as erased and historically buried.
3
SENTAS: COUNTER TERRORISM
Counter terrorism policing both sustains society. State authority then is not fixed, and erases the terror of material ‘lived but relational and is informed by social realities’ while racialising diverse peoples relations which do not exist outside of as terrorising and a threat to nation. A capital (for example see, Gramsci 1971; focus on the dynamics of state power Negri 1994; James 1996; Goldberg 2002). and its terrorising impact provides a ref- Thirdly, a key continuity between the co- erent against the erasure of history and lonial state and the modern racial state the foreclosure of contingent futures in a is characterised by the relation between teleos of terror. coercion, enclosure and capital accu- mulation in penetrating social life and in David Goldbergs’ theorisation of the shaping subject formation (see Gold- ‘racial state’ illuminates the enduring berg 2002: 75, 115). While this article foundations on which Europeans estab- doesn’t seek to conceptualise the rela- lished white supremacy. The changing tion of capital to the formation racial ways in which racialised power is main- subjects, an analysis of the social con- tained, economically, politically, cultur- struction of race without this engage- ally, legally animates state form. The ment has limitations. concept of the racial state does not only refer to the management and re- The racial formation of the state is cali- generation of ‘racist exclusion’, but also brated by multiple structures, technolo- ‘how the modern state has always con- gies and relationships which might use- ceived of itself as racially configured’ fully be thought of as a series of ‘invest- (2002: 2). Hence modern state forma- ments’. George Lipsitz characterised tion is characterised by its’ authorisation ‘possessive investment’ as time spent on and regeneration of processes of exclu- a given end, to animate power and un- sion which both ‘outlive its colonial ex- acknowledged white privilege: pression’ and elaborate the colonial project anew (107-109). Whiteness then, I use the adjective “possessive” to stress is fabricated and naturalised primarily the relationship between whiteness and through the political force of state form. asset accumulation in our society, to While this paper does not explore con- connect attitudes to interests, to demon- strate that white supremacy is usually less tested theories of the state and social, a matter of direct referential snarling economic and racial formation, I pref- contempt than a system for protecting ace reliance on the concept of state the privileges of whites by denying with three qualifications. Firstly, that the communities of colour opportunities for Australian state is neither monolithic nor asset accumulation and upward mobil- a coherent entity. Hence state making, ity. (1998: viii) and the reproduction of social condi- tions for racial and racist exclusion and The racial state’s investment in the pro- inclusion, is a continuous and contradic- ject of counter terrorism is significant and tory process. Secondly, that social and multifaceted. At its core, this investment racial formation demand the interplay of relies on a reconfiguration of law en- modalities of race, class and gender. forcement, security and immigration The intersection of varied social actors, apparatus, to function as ‘security polic- economic and cultural processes repro- ing’ in the war on terror. Security policing duce hegemony. The illusory distinction articulates the enmeshing of security between state and civil society obscures and law enforcement capabilities, and how institutional racism is naturalised as the gradual hybridisation of formerly dis- commonsense. In other words, racial tinct intelligence gathering and coer- state power is generated through civil cive, interrogative functions (Hocking 2004: 235-6). This hybridisation in turn
4
SENTAS: COUNTER TERRORISM
contributes to the normalisation of ex- with Weber’s often cited insight that the ceptional, militarised, pre-emptive pow- state holds a monopoly on violence, ers (Hocking: 236). Security policing in which it renders legitimate, state terror is this article, describes an intersecting ma- masked as counter terrorism. Rather, trix of agencies and their powers, com- terror tactics are deployed as ‘self- prising the Australian Security and Intelli- defence’ in the national security. gence Organisation (ASIO), the Austra- Counter terrorism in Australia has been lian Federal Police (AFP), state police, recognised as historically providing the the Department of Immigration Multicul- ‘major single rhetorical basis’ for the ex- tural Affairs (DIMA), Centrelink opera- pansion and reorganisation of domestic tions and financial institutions (for exam- state security operations (Hocking 1993: ple, the regulatory role of banks in ‘ter- 16). Counter terrorism is scripted as a rorist financing’). Practices of security struggle over space to protect democ- policing are central in operationalising ratic futures against multiple threatening broadly defined counter terrorism law, in internal and external ‘enemies’. In this actively racialising Muslims and those ‘of sense, counter terrorism as a key invest- middle eastern appearance’ as suspect ment in the nations’ ontological security, and to criminalise cultural and religious is highly successful in Lipsitzs’ terms, ‘in practices and identity. The designation connecting attitudes to interests’ (1998: of these agencies within the function of viii). security policing does not seek to ho- mogenise critical operational differ- Secondly, as will be elaborated below, ences. It does however, point to grow- counter terrorism is an investment in ing jurisdictional indistinctions and whiteness partly as its’ discourse and of- Commonwealth consolidation of law ficial history erases the foundational vio- enforcement priorities enhanced in the lence of the Australian nation. The mul- war on terror. Since 2001 the promulga- tiple, diverse technologies of state terror tion of over 29 state and federal laws, instrumental in accomplishing colonisa- together with massive spending on secu- tion are obscured. The enduring poverty, rity policing capabilities has expanded psycho-social stress and devastation security policing powers, jurisdiction and perpetrated onto Indigenous communi- personnel. 1 Moreover, the ideological ties today is deflected away from State investment in counter terrorism traverses responsibility. Furthermore, Australian public fear campaigns such as the Lets whiteness and state formation explicitly Look out for Australia campaign and the originated and continues to be regen- National Security Hotline, investments erated against ‘multiple ethnic others’ which have resulted in many instances (Perera 2005: 31). Colonial relations are of arbitrary state harassment (HREOC continuous with the terror of contempo- 2004; Pugliese 2005). rary security policing in Australia in var- ied, intersecting ways. Perera’s theorisation of whiteness as a ‘teleology of nation’ provides a frame- Thirdly counter terrorism fabricates the work for interrogating counter terrorism protection of a ‘democratic’ national as part of a historically contingent and future as explicitly incompatible with future oriented racial power. The invest- non-white futures. Counter terrorism law ment, the time spent on a given end, is privileges whiteness through excising a teleos of terror which obscures the Arab-ness or Muslim-ness from national workings of racial state power. What space. By constructing Arabs and Mus- then, is the investment of whiteness in lims outside of nation, as suspect com- counter terrorism policing? Beginning munities, criminalisation ensures white
5
SENTAS: COUNTER TERRORISM
identity and strategies of white state ‘ethnic gangs’, drugs, asylum seekers, power continue to be naturalised. The and the most enduring legacy of polic- threat that Arab-ness or Muslim-ness ing, the continuing war on Indigenous poses to white privilege is perhaps the people waged since colonisation. representation of a future which isn’t monopolised by a homogenous white Counter terrorism has its origins in the identity. Pugliese argues that the ‘lived colonial military doctrine of counter in- effects’ of racial profiling in the recently surgency, or the misnomer of ‘low inten- introduced Anti-Terrorism Act 2005 , are sity conflict’ deployed to ensure western that ‘Arab and/or Muslim Australians are imperial expansion and consequent legislatively precluded from inhabiting processes of domination (Hocking 1993). the civic spaces of the nation’ (2005; 19- Counter terrorism has been described as 20). In the latter half of this article I ‘a domestic peace time adaptation of demonstrate how the particular relation strategies to deal with the essentially of counter terrorism law to policing privi- wartime exigencies of a colonial power’ leges whiteness. Law operationalised by (Hocking 1993; 19). Counter insurgency police discretion has always produced has directly influenced modern day social dislocation, stigmatisation and counter terrorism through the following criminalisation. The productive power of strategies: exceptional legislation which state terror relies on communities made departs from legal norms; mass surveil- fearful, surveilled and terrorised. The fu- lance and the collection of large ture oriented discretion of security polic- amounts of intelligence; the preemptive ing however, as elaborated below, in- application of legislation and surveil- tensifies how racial subjects are identi- lance; and militarisation of the police fied and excised. and police and military cooperation and close police media cooperation Criminalisation and the Law (Hocking 1993: 20-29). Counter insur- of the Police gency ‘experts’ such as Kitson and Thompson developed their security The violence of the legal system and at- strategies in response to the struggles tendant processes of criminalisation are against the colonial power of the British one critical historical trajectory of racial and the French in the 1960’s and 1970’s and social formation. Crime has long in Cyprus, Malaya and Algeria (Hocking operated as a proxy for race (Hall et al 18). Critical analysis of the origins of Aus- 1978; Davis 1998), while contemporary tralian counter terrorism are grounded in law is deployed as race neutral and critique of the ‘continuum philosophy’ of democratic (Haney Lopez 1996). Secu- counter-insurgency. This philosophy ad- rity policing is central to processes of vocates that violent insurgency is just a criminalisation of Indigenous and mi- short step from political ‘subversion’ grant communities, at the front end of where ‘previolent’ periods, such as the criminal justice system. Constructions peaceful protest or dissent must be sur- of criminality have been extended in the veilled as potentially terroristic (Hocking war on terror to target ethnic and reli- 19). As such, critical accounts of the ori- gious practice, culminating in what has gins of security policing map jurisdic- been described as the folk devil figure of tional and operational shifts in domestic the ‘Arab or Muslim other’ (Poynting et policing and intelligence strategies tar- al 2004). As the authors acknowledge, in geting a range of civil society activity many ways this is not new but a con- such as labour movements and various tinuation of Australia’s previous wars and leftist ‘threats’ throughout the 20 th cen- racialised punishments – the war on
6
SENTAS: COUNTER TERRORISM
tury (McCulloch 2001; Hocking 1993; The systemic destruction by police of Cain 1983 ). Indigenous culture and connection to land since colonisation is central to ra- It is well established that the institution of cial state formation and the teleology of the Australian police originated in the nation. Indigenous political claims upon genocide of Indigenous people and the nation state are replaced with a continuing practices of dispossession devastating criminalisation, and an en- and criminalisation (for example, Cun- during experience of terror represented neen 2001; Finnane 1994). Further, the as legitimate and legal state action genealogy of contemporary police mili- (Cunneen 250-251; Bird 9-10) tarisation is also located in the colonial policing of dispossession (McCulloch It is clear, however that the violent po- 2001; Cunneen 2001). The deployment lice suppression of Indigenous people of police in a state of war was key to the has operated in effect as the training acquisition and consolidation of land ground for paramilitary state police units, and national authority. Furthermore, sys- whose successors are deployed in con- tematic paramilitary police terror, such temporary counter terrorism. Cunneens’ as mass murder and torture, were fun- research demonstrates that soon after damentally bound up in annihilating re- their formation, elite paramilitary police sistance and the active disruption of In- unit, the Tactical Response Group (TRG) digenous family social and cultural life in New South Wales and Western Austra- (Cunneen 2001). Cunneen outlines that lia were deployed specifically to terrorize while indiscriminate police murders had both rural and urban Indigenous com- largely ended by the 1930’s, the use of munities in the 1980’s and 90’s. These police terror remained a key tactic operations facilitated the massive throughout the 20 th century to maintain growth in these paramilitary units (Cun- control against individuals and entire neen: 98). The use of a large scale pre- communities seen as troublesome (106- dawn raid with 153 TRG officers in Red- 127). Hence, while the later role of po- fern in 1990 on the subtext of ‘drug raids’ lice as administrators witnessed the in- resulted in profound and debilitating tensification of surveillance, regulation psychological trauma for many of the and mass incarceration, terror remained Indigenous households raided (122). The constitutive of the ‘legitimacy’ of racial fact that the raids where found on the state violence. whole to be based on illegal warrants is indicative of how ‘exceptional’ state However, the genocidal war against In- violence in Australia is characterised by digenous people since colonisation has techniques of terror and normalised by not been explicitly considered as the institutional racism. historical origins of contemporary Austra- lian counter insurgency and counter ter- The continuous role of police in criminal- rorism. A critique of the cold war periodi- ising Indigenous people and successive sation of the geneology of counter ter- migrant populations has a long, differen- rorism and its relation to frontier conflict tial and often buried history, also char- is beyond the scope of this article and is acterised by the lived realities of police being developed in my broader re- terror. Investments in police terror are search. Conceptually rethinking counter part of a larger whole of racialised pun- terrorism policing as an investment in ishment, experienced as a terrifying fu- white terror, compels a relation between ture for poor people of colour and mi- criminalisation and erasure of culture, grants globally who are incarcerated as space and belonging, history and future. ‘surplus’ populations. Angela Davis’ im-
7
SENTAS: COUNTER TERRORISM
portant genealogy of racialised punish- ‘whose task is to take charge of life’ ment connects ‘the links between con- (Foucault 1978: 144). finement, punishment and race’ to lo- cate the way state power is formed Hardt and Negri explain Foucaults identi- along the axis of economic and racial fication of biopower as: domination (Davis 1998: 97). Davis’ theorisation connects the history of in- …[a] form of power that regulates social carceration of peoples of Native Ameri- life from its interior, following it, absorbing can, African, Mexican and Asian de- it and recirculating it. ……Biopower thus scent with the structure and racist logic refers to a situation in which what is di- rectly at stake in power is the production of the reservations, slavery, the mission and reproduction of life itself. (Hardt & and internment camps. Perera’s invoca- Negri 2000: 23-24) tion of the ‘camp’ in Australia articulates how the different forms of continuous Significant limitations to Foucault’s incarceration of Indigenous peoples, treatment of coercive domination and extends denationalization and removal the nature of state power are evident in from nation to non Indigenous popula- his erasure of the punishment of the ra- tions in the form of immigration intern- cial body (for example see, James 1996, ment, detention centres and the prison Davis 1998, Perera 2000). A reading of (Perera 2002). This Australian genealogy the biopolitical which reinstates con- of racialised punishment gives an ana- structions of race together with the sov- lytic coherency to the end point of the ereignty of capital in social formation, investment of security policing. holds explanatory power for locating policing's role in reproducing the racial Biopolitical Police Power: state. Agamben’s thesis on biopolitics Delivering the Privilege of Whiteness and legal exception and Walter Benja- min’s critique of law and violence, lo- The constitutive relation of policing to cate police practices as expressions of the racial state, renders an account of sovereignty. Benjamin’s essay Critique policing as merely a discriminatory of Violence written in 1921, describes the technique of repression analytically in- unique character of the police in their sufficient. Rather, security policing relation to law and state violence. Ben- through its discretionary power, and so- jamin argued that state violence find its cial reproductive function, comes to legitimacy in either ‘law making’ or ‘law define the racial state and as such op- preserving’ violence. Law making vio- erates as a key state investment. Polic- lence is violence which conflicts with or ing animates a particularly sovereign overthrows existing laws, with the effect function, to be both subject to the law of creating new laws, such as colonial and to be outside it. Theories of biopoli- conquest which implements the invad- tical power help to locate the internal, ers laws. Law preserving violence, on the immanent relation of policing and terror other hand, enforces existing laws, within to the racial state. Broadly, Foucault the authority of the legal system itself. theorised shifts of rule to modernity from Benjamin characterises the police as not sovereignty to governance as charac- only engaged in the law preserving vio- terised by disciplinary power, rather than lence we commonly associate with law external domination (Foucault 1995). In enforcement, but also law making vio- the transformation to government, Fou- lence, in that the police also function cault also located biopolitical power, as outside of the law. That is, not in the distinct from disciplinary power, a power sense of illegal activity, or bad apples acting ultravires but rather for legal pur-
8
SENTAS: COUNTER TERRORISM
poses, ‘with the simultaneous authority Hardt and Negri also argue that the to decide these ends itself within wide state of exception is normalised particu- limits (it includes the right of decree)’ larly through police decision. They say (Benjamin 1996: 242). The nature of the ‘every civil war is a police action’ and institution of the police as law making that this comes to define sovereignty violence is thus extra-legal in practice (Hardt & Negri: 39). The exceptionality and ultimately socially reproductive. and violence of law, something that lib- eral democracy is at pains to deny and Benjamin outlines two critical aspects to conceal, is characteristic of biopolitical the ‘law’ of the police. Firstly police de- rule and underlies the violence of de- cision is embodied in situations when the mocracy itself. In this sense the ‘new’ state can’t guarantee its desired end manifestations of counter terrorism polic- through the legal system itself, ‘against ing constitutes the rule and what is key thinkers, from whom the state is not pro- to the policing of race. In other words, tected by law’ (243). Is this not the ex- how police power historically both en- emplified in the war on terror, where lib- forces and reproduces law and order eral democracy does not tolerate ex- through its violence, arbitrariness and plicit racial discrimination in law yet relies discretion. on the police to decide to criminalise and racialise multiple non-white others? Police action in Australia is characterised Secondly, that unlike the determinacy of by unpredictable, differential discretions a ‘decision’ of a law proper, police that are read against the bodies of mul- power is described by Benjamin as spec- tiple racial others. From summary execu- tral, ‘formless’ and an ‘all pervasive, tions to supervising the stealing of In- ghostly presence’ (243). This points to the digenous children, to stop and search indeterminacy of police discretion and powers against youth of ‘middle eastern the sovereign power of police decision appearance’, police decision making in action. to either brutalise or supervise are differ- ent forms of biopolitical power (Agam- Carl Schmitt in 1922 argued that in po- ben 1998). Police discretion and terror is litical crisis the State is characterised by central to criminalisation and the repro- the Sovereigns’ declaration of a ‘state of duction of whiteness as both a future exception’. Schmitt characterised this vision of nation and erasure of historical suspension of law as temporary excep- violence. The institutional racism which tion as distinguished from the norm. informs the police discretion to ultimately Against Schmitt, Benjamin in his Eighth ‘decide’ is an exercise of sovereign Thesis on the Philosophy of History char- power, and is consistent with the multi- acterised this state of emergency not as ple discretions of the state to exclude or the exception but as the rule – as fun- include non-white others from the terri- damental to the normal rule of law. tory of nation. Paramilitary policing is (Agamben 2005) Law for Benjamin part of the everyday ‘unexceptional’ generates constant violence and crisis violence experienced by racialised as its’ normal everyday function. Giorgio communities, a policing which silently Agamben, extending Benjamins’ thesis, and mundanely delivers the privileges of distinguished between a ‘fictitious state whiteness to a citizenry defined by what of exception’ which masks the perma- it is not. nent and effective state of violence fundamental to the rule of law (Agam- As Goldberg points out, the institutional ben 2005). racism and violence of the racial state is always normalised, and doesn’t figure as
9
SENTAS: COUNTER TERRORISM
exceptional (Goldberg 114-115). The po- ing to extend the reach of sovereign lice function as decision maker against power. A detailed analysis of these ter- those it enacts upon, reflects the per- rains, while not the subject of this paper, manent state of crisis characteristic of points to the reproductive power of the racial state. For example, the effec- counter terrorism policing as both law tive suspension of rule of law in the colo- making and law preserving violence, in nial massacres of Indigenous people in the contemporary racial state. Australia was normalised. The massacres were not considered as mass murder Terrifying Law – Police as and did not require declaration of mar- National Managers tial law (Cunneen 2001: 60-62). The sus- pension of legal norms characteristic of Post 9/11 terrorism laws in Australia re- counter terrorism law is operationalised produce racial state power through two through social relations between police related processes. Firstly, the creation of and policed. The biopolitics, or internali- broadly defined pre-emptive offences sation, of the policing of race, masks the and new terms of art to identify multiple violent state of crisis of institutional ra- racial subjects as potentially suspect . cism. The sovereignty of security police Secondly, massive reconfigurations of intensifies criminalisation of communities security policing powers to enable re- by deploying a range of pre-emptive moval of non-white others from national intelligence measures independent of space as racialised and criminalised. the courts and traditional carceral sys- The laws invest political discipline against tems, such as home detention, informal multi racial bodies through discretionary questioning and warrantless searches. terror and expanded police decision Moreover the recomposition of commu- making. In the last part of this article I nities and the cooperation of civil soci- briefly outline key aspects of this frame- ety in recirculating and internalising ho- work. The statutory regime since 2001 mogenising power signals the immanent invests in malleable legal concepts such nature of racial state power. An appeal as ‘terrorist act’ which at its core crimi- to the restoration of ‘normal’ criminal nalises actual or threatened political vio- law, denies the teleology of whiteness in lence anywhere in the world, for any criminal justice frameworks. purpose, whether it is against violence originated by oppressive, brutal regimes The productive capabilities of policing (Sentas 2006; Emerton 2005). In fact to acquire renewed importance as a site of make out most terrorism offences, there racialised state practice. Particularly as is no need for an actual terrorist act to globalisation erases boundaries be- occur, or for there to be a specific act of tween external and internal wars, and violence contemplated (Pettit & Sentas the distinctions between military and 2005: 283). police apparatus as law and order is in- tegrated into the task of security and The intensification of state violence defence (Hardt & Negri 2000; McCulloch through police discretion identifies racial & Carlton 2006). The ascendency of subjects in a panoply of new law. For neoliberal globalisation, may have example, under the executive proscrip- brought a de-territorial sovereignty of tion of organisations as ‘terrorist’, the At- capital in the liberalisation of money torney General has banned 19 organisa- across borders. But it has also consoli- tions on the recommendation of ASIO. 2 dated the territory of the nation state Criminalisation of ‘indirect’ membership, through intersecting genealogies of ra- funding, training (including humanitarian cialised punishment, bolstered by polic- training) and support for the organisa-
10
SENTAS: COUNTER TERRORISM
tions, are not dependant on intention or Policing both associative and pre- engagement in an act of violence, but emptive ‘guilt’ requires mass surveillance on association, where even the emo- and intelligence, increasing discretion- tional or political support for or identifi- ary police contact with predominantly cation with liberation struggle in Pales- non-white multi-ethnic people and those tine or Kurdistan, for example, may at- of the Islamic faith. Legislative measures tract up to 25 years imprisonment (Sen- rely on police discretion and amplified tas 2006). Refugees who have been powers of surveillance to identify and granted asylum in Australia for their ac- decide on racial subjects. For example, tual or imputed affiliations with the now an initial order for 48 hour preventative banned Kurdistan Workers Party (PKK) detention for those who may not be could face security police surveillance, suspected of any offence, is authorised deportation and potential prosecution by a senior officer of the Australian Fed- (Sentas 2006: 32-37). Furthermore, a eral Police, not a court (Chong & Sentas separate regime has listed over 1, 600 2006). New stop and search provisions individuals and organisations as terrorist, give state and federal police pre- (Chong & Sentas 2006: 36) freezing the emptive authority based only on what a assets of those who support diverse in- person ‘might’ do, if they are within an surgencies such as the Liberation Tigers executively designated ‘security zone’ of Tamil Eelam (LTTE), the Shinning Path (Pettit & Sentas 2005: 284-285). The phe- and the People’s Liberation Army of the nomena of the ASIO raid, now also Phillipines ( Charter of the United Nations flanked by a flotilla of Commonwealth Act 1945; see also Suppression of the Fi- and state police, is invested heavily as a nancing of Terrorism Act 2002 ). zone of spectral, discretionary state vio- lence to dehumanise those raided. Suppression of the financing of terrorism laws empower financial institutions to As pre-emption justified the invasion of report ‘suspicious’ financial transactions Iraq so too the logic of pre-emption in and thus target ethnic or religious iden- the domestic context is manifest in the tity. Those who front up to a bank, and raids of many Muslim families in 2001 and look or sound like a ‘terrorist’, or whose 2002, who were not charged with any name on paper appears ‘connected’ to offence and were racially profiled as a ‘country of concern’ and may then be suspicious. Some raids involved the au- pre-emptively subject to security polic- thorities pointing guns at both adults and ing detention regimes (McCulloch & children, raids occurred in the middle of Carlton 2006: 405-407). Security policing the night with no explanation, and pass- interventions are characterised by racial ports were revoked with no reason. and religious profiling as a substitute for (Clelland 2002; Poynting 2004; Trad 2001) guilt (for discussion of examples of the A woman occupying one of the Sydney impact in Australia, see Chong & Sentas homes raided by Police and ASIO in No- 2006; Pugliese 2005; McCulloch & Carl- vember 2005 conducted as part of ‘Op- ton 2006) Preventative detention and eration Pandanus’ 3 suffered from a heart home detention through control orders attack during the operation (Cubby introduced in the Anti-Terrorism Act 2005 2005). After ASIO were granted coercive (Cth), also punish in anticipation of police-like questioning powers for the crime through the inbuilt logic of racial first time ( Australian Security Intelligence profiling, simultaneously denied by the Organisation Legislation Amendment state and acknowledged by the police (Terrorism) Act 2003 ), ASIO officers were as inevitable (Pugliese 2005: 18-20). reported to have threatened a person with detention for three days if the per-
11
SENTAS: COUNTER TERRORISM
son did not cooperate with a raid On June 24 2006, the Attorney General (Chong & Sentas 47-48). announced his intention to conduct an investigation for ‘welfare fraud’ of those Muslim community organisations and families who have received charitable individuals have reported being fearful assistance from the fundraising efforts of about engaging in any political activity, the Islamic and Information Services or even social calls to friends for fear of Network of Australasia (IISNA). While non being under surveillance, or fear that Islamic leftist groups have also raised they may inadvertently be ‘associating’ funds for the families, IISNA was targeted with someone of interest to the authori- by media reports as a ‘hardline’ funda- ties (AMCRAN 2005a, 2005b). Such prac- mentalist organisation who raised $50 tices bear the hallmarks of colonial 000 for ‘terrorists’. The fundraising efforts counter insurgency strategies. An of IISNA are represented as inherently anonymous Australian authority said of suspect within the dominant Islamapho- the June 2005 Operation Pandanus bic framework. Moreover, the families of raids, that the stated purpose was to the accused are vilified by virtue of their ‘rattle the cages, to deter them from alleged receipt of ‘combined welfare taking the next step’ (Nicholson 2005) and legal aid payment of 1 million dol- The image of ‘ethnics in cages’ (Hage lars’ (Kerbaj 2006). The accused and 1998) invokes at once the threat of in- their families join the extended category carceration and excision from national of excluded ‘unAustralians’ – welfare space as dangerous and less than hu- recipients, Indigenous people, and con- man. The statutory presumption against secutive categories of ‘scheming eth- bail for terrorism charges ( Crimes Act s nics’. 15AA) and the consequent incarcera- tion of the accused in maximum security The Australian Government’s attempts to prisons delivered on this threat. manage Muslim citizens, through the promotion of ‘moderate’ versions of Is- The racial state delivers its’ terror through lam, the criminalisation of ‘radical’ Islam police discretion to transform questions through police discretion and the impo- of belonging to those of defending terri- sition of core Australian values reflect the tory, both spatial and economic. For organising principles of the racial state. example Liz Fekete describes how the Counter terrorism laws are animated by anti-Muslim xeno-racism of the European police powers to invigorate the racialisa- security state operates to make its ‘inte- tion of social controls as exclusion. gration’ policies of assimilation an exten- However, the policing of ‘inclusion’ is just sion of counter terrorism law (Fekete as central in the regeneration of white 2004). At the same time by rendering nation. Strategies such as ‘community citizenship as a security concern, policies policing’ redefine counter terrorism as a which heighten the socio-economic and self consciously cooperative ‘conversa- gendered exclusion of working class tion’ with Muslim communities rather Muslim communities are extended. The than an explicitly paramilitary exercise. arrests between November 2005 and Such shifts in state power operate to April 2006 of 22 Muslim men for alleged make mechanisms of command and terrorism organisation offences resulted control appear ever more democratic, for some in the suspension of Centrelink involving the policed in their own domi- payments to their wives and the freezing nation. of joint bank accounts as extra judicial punishment. 4 As the history of colonial rule and Gram- sci’s theory of hegemony tell us, rule isn’t
12
SENTAS: COUNTER TERRORISM
ever through coercion but also through mentary Joint Committee on Intelli- consensus (Gramsci 1971). The Australian gence and Security- Review of Part III political order is founded on the promul- Division 3 of the Australian Security In- gation of concepts of democracy and telligence Organisation Act 1979. freedom as particularly western identi- Australian Muslim Civil Rights Advocacy ties, and as core values, even as these Network, 2005b, Submission to Senate concepts function unevenly for Indige- Legal and Constitutional Committee nous, migrant and other atomised popu- Inquiry into provisions of the Anti- lations. Discretionary policing reveals the Terrorism (No. 2) Bill 2005 November fundamental character of liberal de- 2005. mocracy as a violently racialised and Ansari, F 2005 British Anti-Terrorism: A bordered project. It is no accident that Modern Day Witch-Hunt, Islamic Hu- state terror reinforces and generates man Rights Commission, available at: democratic racial power. It is an invest-
Acknowledgments Chong, A and Sentas, V 2006, ‘Part III: Monitoring the Impact of Terrorism An earlier version of this paper was pre- Laws on Muslim and Culturally and sented at the conference, ‘Whiteness Linguistically Diverse Communities’ in, and the Horizons of Race’ in Brisbane on Combined Community Legal Centres’ the 8 th December 2005. I would like to Group (NSW) Inc, et al, Australian NGO thank the anonymous referees for gen- Submission to the UN Special Rappor- erous comments which greatly assisted teur on Counter-Terrorism and Human the development of this paper. Rights , March 2006, available at:
13
SENTAS: COUNTER TERRORISM
Sydney: Pluto Press. Goldberg, D T, 2002, The Racial State , Cubby, B 2005, ‘Children were raid by- Massachusetts: Blackwell Publishers. standers,’ Sydney Morning Herald, No- Golder, B, Williams, G 2006, ‘Balancing vember 9, 2005. National Security and Human Rights: Cunneen, C 2001, Conflict, Politics and Assessing the Legal Response of Crime: Aboriginal Communities and Common Law Nations to the Threat of the Police , Crows Nest: Allen and Un- Terrorism’, Journal of Comparative Pol- win. icy Analysis, vol 8, no 1, 43-62. Cunneen, C 1990, Aboriginal-Police Re- Gramsci, A 1971, Selections from Prison lations in Redfern: with special refer- Notebooks , Hoare, Q and Novell- ence to the ‘Police Raid’ of 8 February Smith, G (eds & trans), London: Law- 1990 , Report Commissioned by the Na- rence & Wishart. tional Inquiry into Racist Violence, Hu- Hagopian, E (ed) 2004, Civil Rights in man Rights and Equal Opportunity Peril: The Targeting of Arabs and Mus- Commission, Sydney. lims , Chicago: Haymarket Books. Davis, A Y 1998, ‘Racialised Punishment Hall, S, Critcher, C, Jefferson, T, Clarke, J, and Prison Abolition’ in James, J (ed) Roberts, B 1978, Policing the crisis : The Angela Y. Davis Reader , Oxford: mugging, the state, and law and or- Blackwell, 61-73. der, London: Macmillan . Emerton, P 2004, ‘Paving the way for Haney Lopez, F 1996, White by Law – conviction without evidence – a dis- the Legal Construction of Race , Lon- turbing trend in Australia’s ‘anti- don: New York University Press. terrorism’ laws’, Queensland University Hardt, M & Negri, A 2000, Empire , Cam- of Technology Law and Justice Jour- bridge: Harvard University Press. nal, vol 1, 2004-2005, 1-38. Head, M 2002, 'Counter-Terrorism' Laws: Emerton, P 2005, Submission to the In- A Threat to Political Freedom, Civil Lib- quiry into the Listing of Four Terrorist erties and Constitutional Rights', Mel- Organisations under the Criminal bourne University Law Review , vol 26, Code, to the Parliamentary Joint 66-82. Committee on ASIO, ASIS and DSD, 29 Hocking, J 2003, Terror Laws: ASIO, July 2005, available at: Counter-Terrorism and the Threat to http://www.aph.gov.au/house/commi Democracy, Sydney: UNSW Press Ltd. ttee/pjcaad/terrorist_listingsc/subs/sub hooks, b 1992, ‘Representations of White- 4.pdf . ness in the Black Imagination’, in Black Finnane, M 1994, Police and Govern- Looks: Race and Representation , Bos- ment, Histories of Policing in Australia , ton: South End Press, 165-178. Melbourne: Oxford University Press. Human Rights and Equal Opportunity Foucault, M 1995, Discipline and Punish: Commission 2004, Isma – Listen: Na- The Birth of the Prison , London: Penguin tional Consultations on eliminating Books. prejudice against Arab and Muslim Foucault, M 1978, The History of Sexuality , Australians , Human Rights and Equal New York: Vintage. Opportunity Commission, Sydney. Fekete, L 2004, ‘Anti-Muslim Racism and James, J 1996, Resisting State Violence: the European Security State’, Race Radicalism, Gender and Race in US and Class , vol 46, no1, 3-29. Culture , Minneapolis: University of Min- Gilroy, P 1990, ‘One Nation Under nesota Press. Groove, the Cultural Politics of ‘Race’ Kerbaj, R ‘Muslims give big to suspects' and Racism in Britain’ in Goldberg, D Families’ Australian , 21 June 06 (ed) Anatomy of Racism , Minneapolis: Lipsitz, G 1998, The Possessive Investment University of Minnesota Press. in Whiteness: How White People Bene-
14
SENTAS: COUNTER TERRORISM
fit from Identity Politics , Philadelphia:
15
SENTAS: COUNTER TERRORISM
Suppression of the Financing of Terrorism Act 2002 (Cth)
Endnotes
1 For a list of legislation see: www.nationalsecurity.gov.au . 2006-2007 Federal Budget spending includes $1.6 billion in additional funding over five years, the ma- jority of funding for security policing capabili- ties, in the Attorney-General’s and Justice and Customs portfolio alone. This includes increases to ASIO, AFP intelligence and sur- veillance capabilities, the establishment of ‘Identity security strike-teams’. See: The Hon Philip Ruddock MP, News Release: Law and Justice Overview, 9 May 2006: 2 The organisations banned in Australia are: Abu Sayyaf Group, Al Qa'ida, Ansar Al-Islam Armed Islamic Group, Asbat al-Ansar, Egyp- tian Islamic Jihad, Hamas's Izz al-Din al- Qassam Brigades, Harakat Ul-Mujahideen, Hizballah External Security Organisation, Is- lamic Army of Aden Islamic Movement of Uzbekistan, Jaish-i- Mohammed, Jemaah Islamiyah, Kurdistan Workers Party, Lashkar I Jhangvi, Lashkar-e- Tayyiba, Palestinian Islamic Jihad, Salafist Group for Call and Combat, Tanzim Qa’idat al-Jihad fi Bilad al-Rafidayn (the al-Zarqawi network) http://www.nationalsecurity.gov.au/agd/ww w/nationalsecurityhome.nsf/Page/Listing_of_ Terrorist_Organisations , 3 A series of high profile security police raids were made on homes in Sydney and Mel- bourne, on the 20 June followed by another series of raids and arrests on 8 November. At the time of writing, the 22 men have been charged with membership and financing of an unspecified terrorist organisation, and detained on remand in maximum security units while court proceedings are yet to commence. For the 13 men detained in Vic- toria’s Barwon Prison ‘Acacia Unit’, the last 8 months have been spent in solitary confine- ment for between 18 to 23 hours a day. Cells are raided by security and police every few weeks and the men are reported to be mal- nourished. (Abdou and Kent 2006.) 4 Personal communication with author, 1 De- cember 2005.
16